HO LUNG THOMAS IGNATIUS the administrator of the estate of YAU CHUN WING , deceased v. ALL OCCUPIERS of ALL THAT AND ANOTHER

HO LUNG THOMAS IGNATIUS the administrator of the estate of YAU CHUN WING , deceased v. ALL OCCUPIERS of ALL THAT AND ANOTHER

The court found the 2nd defendant's affirmation raised substantial triable issues on intention to possess, factual possession and encroachment/tenant issues such that the matter is unsuitable for determination under Order 113; accordingly the originating summons was to be continued as if begun by writ and the...

Source-derived case information.

Citation
HO LUNG THOMAS IGNATIUS the administrator of the estate of YAU CHUN WING , deceased v. ALL OCCUPIERS of ALL THAT AND ANOTHER
Parties
Plaintiff: Plaintiff (name not stated in extract); 1st Defendant: Ho Lung Thomas Ignatius; 2nd Defendant: Hung Oi Chun
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
24 January 2017
Case Number
DCMP1493/2016
Procedural Posture
Originating Summons for Recovery of Land Under Order 113, Rules of the District Court (cap.336 H) / Application to Continue Originating Summons as If Begun by Writ; Directions for Pleadings Ordered
Outcome
Originating summons converted to writ action and pleaded to trial; directions for pleadings given; costs of 2nd defendant's summons in the cause.
Legal Topics
Adverse Possession, Order 113 Procedure, Continuation to Writ, Possession and Animus Possidendi
Source Language
en
Property Law Land Law Civil Procedure Adverse Possession Order 113 Procedure Continuation to Writ Possession and Animus Possidendi

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Parties

Plaintiff (name not stated in extract)

Plaintiff

Ho Lung Thomas Ignatius

1st Defendant

Hung Oi Chun

2nd Defendant

Procedural Posture

Originating Summons for Recovery of Land Under Order 113, Rules of the District Court (cap.336 H) / Application to Continue Originating Summons as If Begun by Writ; Directions for Pleadings Ordered

Legal Issues

  1. 1 Whether the originating summons procedure under Order 113 is appropriate where the defendant pleads adverse possession
  2. 2 Whether the 2nd defendant has established factual possession and animus possidendi sufficient to defeat an Order 113 determination without trial
  3. 3 Whether a tenant of adjoining land can rely on encroachment to claim adverse possession against the paper title owner

Ratio Decidendi

The court found the 2nd defendant's affirmation raised substantial triable issues on intention to possess, factual possession and encroachment/tenant issues such that the matter is unsuitable for determination under Order 113; accordingly the originating summons was to be continued as if begun by writ and the parties given directions for pleadings and trial preparation.

Court Disposition

Originating summons converted to writ action and pleaded to trial; directions for pleadings given; costs of 2nd defendant's summons in the cause.

Orders

  • Originating summons filed 19 May 2016 continued as if the cause of action has been begun by writ.
  • Plaintiff granted leave to file and serve a statement of claim within 28 days from date of decision.